Citation Nr: 0123918
Decision Date: 10/01/01 Archive Date: 10/09/01
DOCKET NO. 99-12 699 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to service connection for gastric leiomyoma (with
dumping syndrome), to include as secondary to herbicide
exposure.
ATTORNEY FOR THE BOARD
M. Vavrina, Associate Counsel
INTRODUCTION
The veteran had active service from November 1966 to August
1968 and a subsequent period of service with the United
States Army Reserves from April 1967 to May 1992. This
matter comes before the Board of Veterans' Appeals (BVA or
Board) on appeal from November and December 1998 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office in Cleveland, Ohio, which denied the benefit sought on
appeal.
In November 2000, the BVA remanded the case to the RO for
further development to include a nexus examination. The
requested development having been completed, the case now is
before the Board for additional appellate review.
In June 2001, the veteran submitted additional information.
The Board notes that the additional medical evidence
submitted by the veteran was generated within the 90-day
period following re-certification of the appeal to the BVA
and accompanied by a waiver of his right to have the RO
consider it. Thus, the case need not be remanded for
consideration by the RO and a supplemental statement of the
case. 38 C.F.R. § 20.1304(c) (2001).
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained by the RO.
2. The veteran had active military service in Vietnam during
the Vietnam Era.
3. There is no evidence of record that the veteran has been
diagnosed with a disability recognized by the VA as
etiologically related to exposure to herbicide agents used in
Vietnam.
4. The medical evidence does not establish that the
veteran's gastric leiomyoma (with dumping syndrome) is
related to herbicide exposure in Vietnam, or due to some
other incident of the veteran's active military service.
CONCLUSION OF LAW
Gastric leiomyoma (with dumping syndrome) was not incurred or
aggravated by active military service, nor may it be presumed
to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 1116, 5107 (West 1991 & Supp. 2001); 38 C.F.R.
§§ 3.102, 3.303, 3.307. 3.309 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
During the pendency of the appeal, the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000) (VCAA) became effective. Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), now
codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West
Supp. 2001). Besides essentially eliminating the requirement
that a claimant submit evidence of a well-grounded claim,
this liberalizing legislation also modified the circumstances
under which VA's duty to assist a claimant applies and how
that duty is to be discharged. Specifically, it requires VA
to notify the claimant and the claimant's representative, if
any, of information required to substantiate a claim, a
broader VA obligation to obtain relevant records and advise a
claimant of the status of those efforts, and an enhanced
requirement to provide a VA medical examination or obtain a
medical opinion in cases where such a procedure is necessary
to make a decision on a claim. VA has also revised the
provisions of 38 C.F.R. § 3.159 effective November 9, 2000,
in view of the new statutory changes. See 66 Fed. Reg.
45620-45632 (August 29, 2001).
Where laws or regulations change after a claim has been filed
or reopened and before the administrative or judicial process
has been concluded, the version most favorable to the
appellant will apply unless Congress provided otherwise or
has permitted the Secretary of Veterans Affairs to do
otherwise and the Secretary has done so. See Karnas v.
Derwinski, 1 Vet. App. 308 (1991). As the Board noted in its
November 2000 Remand the revised version of 38 U.S.C.A. §
5107 eliminates the "well-grounded claim" requirement of 38
U.S.C.A. § 5107 (West 1991) and is, therefore, applicable
under Karnas. 38 U.S.C.A. § 5107 (West Supp. 2001). The
VCAA also provides that VA will assist a claimant in
obtaining evidence necessary to substantiate a claim but is
not required to provide assistance to a claimant if there is
no reasonable possibility that such assistance would aid in
substantiating the claim.
After examining the record, the Board is satisfied that all
relevant facts pertaining to the veteran's claim for service
connection for gastric leiomyoma (with dumping syndrome), to
include herbicide exposure, have been properly developed as
service and Reserve medical records, recent non-VA treatment
records and VA examination reports have been associated with
the file. The Board notes that the veteran was afforded VA
examinations in September 1998 and December 2000, the latter
in response to a November 2000 BVA Remand, which failed to
suggest a nexus between the veteran's gastric leiomyoma (with
dumping syndrome) and any remote incident of service. Under
these circumstances, the Board finds that the VCAA does not
mandate another examination. In a May 1999 statement of the
case and subsequent supplemental statements case, the RO
advised the veteran of what must be demonstrated to establish
service connection, including on a presumptive basis. The
Board finds that the RO has obtained or made reasonable
efforts to obtain, all treatment records, which might be
relevant to the veteran's claim. Thus, no further assistance
to the veteran is required in order to comply with the duty
to assist as mandated by the recently enacted VCAA.
38 U.S.C.A. § 5301A (West Supp. 2001).
The Board finds no prejudice to the veteran in this case by
proceeding with the adjudication of the question of
entitlement to service connection as the RO has complied with
the notice provisions of the VCAA. This is so because the RO
specifically notified the veteran of the requirements needed
for entitlement to service connection, including on a
presumptive basis, in the May 1999 statement of the case.
The RO notified the veteran that there must be evidence of a
current disability, evidence of a disease or injury due to
service, and evidence of a link between the disability and
service. Moreover, all of the relevant evidence was
considered. As such, there has been no prejudice to the
veteran that would warrant a remand, the veteran's procedural
rights have not been abridged, and the Board will proceed
with appellate review. Bernard v. Brown, 4 Vet. App. 384,
393 (1993).
Applicable law provides service connection will be granted if
it is shown that the veteran suffers from disability
resulting from an injury suffered or disease contracted in
the line of duty, or for aggravation of a preexisting injury
suffered or disease contracted in the line of duty, in active
military service. 38 U.S.C.A. § 1110 (West 1991 & Supp.
2001); 38 C.F.R. § 3.303 (2001). That an injury incurred in
service alone is not enough, there must be chronic disability
resulting from that injury. If there is no showing of a
resulting chronic condition during service, then a showing of
continuity of symptomatology after service is required to
support a finding of chronicity. 38 C.F.R. § 3.303(b).
Certain chronic disabilities are presumed to have been
incurred in service if manifest to a comparable degree within
one year of discharge from service. 38 U.S.C.A. §§ 1101,
1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also
be granted for any disease diagnosed after discharge, when
all the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d).
Service connection connotes many factors but basically it
means that the facts as shown by the evidence, establish that
a particular injury or disease resulting in disability was
incurred coincident with service. In order to prevail on a
claim for service connection there must be medical evidence
of a current disability as established by a medical
diagnosis; of incurrence or aggravation of a disease or
injury in the service, established by lay or medical
evidence; and of a nexus between the in-service injury or
disease and the current disability established by medical
evidence. Caluza v. Brown, 7 Vet. App. 498, 506 (1995).
Medical evidence is required to prove the existence of a
current disability and to fulfill the nexus requirement. Lay
or medical evidence, as appropriate, may be used to
substantiate service incurrence.
As to the veteran's specific contentions that he was exposed
to herbicides, which resulted in his claimed disorder, the
Board observes that for claims involving exposure to an
herbicide, the law provides that veterans who served on
active military, naval, or air service in the Republic of
Vietnam during the period beginning January 9, 1962 and
ending on May 7, 1975 (known as the Vietnam Era) and who have
a disease specified by such, shall be presumed to have been
exposed to an herbicide agent during such service, unless
there is affirmative evidence to the contrary. See
38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.309(e). If a veteran
was exposed to an herbicide agent during active military
service, the following diseases shall be service connected if
the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met,
even though there is no record of such disease during
service, provided further that the rebuttable presumption
provisions of 38 C.F.R. § 3.307(d) are also satisfied:
Chloracne or other acneform disease consistent with
chloracne; Hodgkin's disease, non-Hodgkin's lymphoma; acute
and subacute peripheral neuropathy; porphyria cutanea tarda
(PCT); prostate cancer; multiple myeloma, respiratory cancers
(cancers of the lung, bronchus, larynx, or trachea), and
soft-tissue sarcoma. 38 C.F.R. § 3.309(e).
The diseases listed in 38 C.F.R. § 3.309(e) must have become
manifest to a degree of 10 percent or more at any time after
service, except that chloracne or other acneform disease
consistent with chloracne, PCT, and acute and subacute
peripheral neuropathy must have become manifest to a degree
of 10 percent or more within a year, and respiratory cancers
within 30 years, after the last date on which the veteran was
exposed to an herbicide agent during active military, naval,
or air service. 38 C.F.R. § 3.307(a)(6)(ii).
If the veteran has not been medically diagnosed as having a
disease listed in the regulation, the claimant must provide
evidence establishing exposure to an herbicide agent in order
to satisfy the second element of Caluza (evidence of
incurrence or aggravation of a disease or injury in service).
McCartt v. West, 12 Vet. App. 167, 169 (1999).
The Secretary of Veterans Affairs has determined that there
is no positive association between exposure to herbicides and
any other condition for which the Secretary has not
specifically determined that a presumption of service
connection is warranted. See 64 Fed. Reg. 59232-43 (November
2, 1999), 61 Fed. Reg. 41442-49 (August 8, 1996) and 59 Fed.
Reg. 341-46 (January 4, 1994).
The Board notes that there is adequate medical evidence of
record supporting recent findings of gastric leiomyoma with
post-surgical dumping syndrome and other gastric disorders.
Moreover, the evidence indicates that the veteran served in
the Republic of Vietnam during the Vietnam Era. As such, the
focus of this appeal will be on the relationship, if any,
between the veteran's gastric leiomyoma (with dumping
syndrome) and an incident of his active military service,
including exposure to an herbicide agent.
The veteran's claim that his gastric leiomyoma (with dumping
syndrome) is secondary to exposure to herbicides must be
denied. Initially, the Board notes that although the veteran
has been diagnosed with various gastric disorders, none are
among the types of conditions for which a causal relationship
to herbicide exposure has been established. Therefore,
although the veteran served in the Republic of Vietnam during
the Vietnam Era, see 38 C.F.R. § 3.2(f), there is no
competent medical evidence of record that he has been
diagnosed with one of the disorders listed under 38 U.S.C.A.
§ 1116(a)(3) or 38 C.F.R. § 3.309(e), and, as such, he is not
entitled to presumptive service connection for the claimed
disorder based on herbicide exposure. See McCartt, 12 Vet.
App. at 168.
The Board has considered the veteran's assertions that he
suffers from a gastric disorder related to herbicide
exposure. However, being a layman, he is not competent to
give an opinion regarding medical causation or diagnosis, and
his statements on such matters do not establish service
connection. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992). Therefore, as a matter of law, the veteran cannot
receive the benefit of a rebuttable presumption that he has
gastric leiomyoma (with dumping syndrome) that was caused by
exposure to herbicides. To the extent the law is dispositive
of an issue on appeal, the claim lacks legal merit. Sabonis
v. Brown, 6 Vet. App. 427, 430 (1994).
Notwithstanding the foregoing analysis, the United States
Court of Appeals for the Federal Circuit has determined that
the Veterans' Dioxin and Radiation Exposure Compensation
Standards (Radiation Compensation) Act, Pub. L. No. 98-542,
§ 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act
of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), do not
preclude establishment of service connection with proof of
actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042
(Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996),
aff'd sub nom Ramey v. Gober 120 F.3d 1239 (Fed. Cir. 1997),
cert. denied, 118 S. Ct. 1171 (1998). See Brock v. Brown, 10
Vet. App. 155, 160-61 (1997). Thus, the veteran could
establish service connection directly.
Second, there is no medical evidence establishing that the
veteran had a chronic gastric disorder during service or that
any current gastric disorder is related to service. Absent a
nexus, entitlement to service connection cannot be
established under Combee, 34 F.3d at 1939.
In this case, the veteran's service medical records are
negative for treatment of or complaints of gastric leiomyoma
(or dumping syndrome). Separation and periodic examinations
conducted for Reserve Officer Training Corps (ROTC), the Army
and the Reserves from January 1964 to September 1991 reflect
that the veteran's abdomen, viscera and genitourinary (G-U)
system were clinically evaluated as normal.
Post-service treatment records consist of September 1998 and
December 2000 VA examination reports and private treatment
records dated August 1993 to November 2000 from S. R. S.,
D.O., K. M. R., D.O., S. G., D.O., and Grandview/Southview
Hospital. These records confirm that the veteran has
undergone repeated esophagogastroduodenoscopy (EGD), biopsy
and colonoscopy and has been diagnosed with esophageal
stricture, hiatal hernia, Barrett's esophagus, esophageal
ulcer, erosive gastritis, duodenal ulcer with duodenitis,
diverticulosis of the colon, infectious colitis, rectal
polyps, hemorrhoids, benign gastric spindle cell leiomyoma
with associated post-surgical dumping syndrome, and
gastroesophageal obstruction secondary to probable leiomyoma
and gastroesophageal reflux disease. Post-service private
treatment records do not contain a medical opinion addressing
the etiology of the veteran's gastric leiomyoma. Moreover, a
June 2001 general statement about benign and malignant smooth
muscle tumors of the stomach from pathologist, O. H. K., Jr.,
DDS, Ph.D., quoting from a recognized pathology text, only
indicates that " . . . the number of mitoses is usually
greater in leiomyosarcomas than leiomyomas. In some cases,
the true nature of the tumor becomes apparent only after
long-term follow-up."
At the September 1998 VA examination, the veteran reported a
family history of hiatal hernia and a recent history of
significant gastrointestinal treatment. A 1993 EGD revealed
ulcers at the base of his stomach and in his esophagus and a
hiatal hernia and a 1997 EGD showed a tumor at the junction
of the esophagus and the stomach, which was surgically
removed in January 1998 and found to be a benign leiomyoma.
A 1998 EGD showed several ulcers in the distal esophagus and
a flexible sigmoidoscopy and biopsy revealed several benign
polyps. On examination, there was a well healed, non-tender
incision scar on the veteran's abdomen with no drainage or
increased erythema noted. The abdomen was non-tender with no
palpable masses. Bowel sounds were normal. The diagnoses
included peptic ulcer disease; recently diagnosed esophageal
ulcers; Barrett's esophagus; gastric leiomyoma, status post
partial gastrectomy, partial esophagectomy, with post-
surgical dumping syndrome; and benign colonic polyps.
At a December 2000 VA examination, the veteran reported
having had a recent hernia repair and experiencing dumping
syndrome and some nausea but no emesis, melena or vomiting
since his January 1998 gastroesophagealectomy removal of a
gastric leiomyoma. On examination, abdominal examination was
relatively benign with a midline scar above the umbilicus
that was clean without erythema, drainage or tenderness.
There was ongoing tenderness at the incision site of his
November 2000 hernia repair but no obvious defects were
noted. The diagnosis was status-post leiomyoma resection of
the gastroesophageal junction and an internal hernia repair.
There was no evidence of recurrence of the leiomyoma. The
examiner opined that the veteran's exposure to defoliants in
Vietnam was not the cause of his leiomyoma because: (1) most
defoliant-related tumors are soft-tissue sarcomas, not
leiomyomas, and (2) the veteran's tumor, leiomyoma, is often
found at autopsy in asymptomatic people without any chemical
exposures.
A January 2001 VA computed tomography (CT) scan noted the
presence of a sliding hiatal hernia and multiple clips in the
left upper quadrant related to prior surgery at the
gastroesophageal junction. The remainder of the alimentary
tract was notable for a few diverticula in the sigmoid colon.
The liver, gallbladder, spleen, adrenal glands, and pancreas
were within normal limits. Simple cysts were noted in the
right kidney and the left kidney was normal. There were no
ascites, lymphadenopathy or mass.
The Board finds that the veteran has not established service
connection for a gastric leiomyoma on a direct basis. The
veteran was not treated for gastric leiomyoma or another
gastric disorder during service and while he certainly was
diagnosed with gastric leiomyoma, there is no post-service
medical evidence of record establishing that the veteran had
a chronic gastric disorder during service, or that any
current gastric disorder is related to service. It is
pertinent to note that the veteran's original claim for
service connection for gastric leiomyoma with dumping
syndrome was not filed until July 1998, nearly 30 years
following separation, and that he was not diagnosed with
gastric leiomyoma until 1998. See, e.g., Maxson v. Gober,
230 F.3d. 1330 (Fed. Cir. 2000) (stating that the long period
after service containing a lack of complaints or treatment
could be viewed in the context of all the evidence as
demonstrating that no disability was aggravated in service).
In reaching this decision, the Board has considered the
medical treatise evidence regarding the nature and etiology
of gastrointestinal disease, including
leiomyoma/leiomyosarcoma, submitted by the veteran. Although
they generally may support the veteran's claim, the Board
does not assign this type of evidence much weight, as it does
not establish a relationship between the veteran's gastric
leiomyoma and his period of service with any degree of
certainty. Further, this treatise evidence does not address
the facts that are specific to the veteran's case, as was
done by the December 2000 VA examiner. Medical treatise
evidence, however, can provide important support when
combined with an opinion of a medical professional. Mattern
v. West, 12 Vet. App. 222, 228 (1999). In this case, the
record does not contain an opinion of a medical professional
linking or suggesting a link between the veteran's gastric
leiomyoma and his period of service. The only medical
opinion submitted by the veteran in combination with these
excerpts, the June 2001 pathologist's statement, is itself
basically an excerpt of a treatise and does not discuss the
veteran's specific disorder. Thus, the Board concludes that
these excerpts are insufficient to establish the required
medical nexus opinion.
The only remaining evidence in support of the veteran's claim
is his own opinion contending that his gastric leiomyoma is
the result of his period of active service. However, as
noted above, being a layman, he is not competent to give an
opinion regarding a medical diagnosis for his gastric
disorders (Espiritu, supra.). In the Board's judgment, the
service medical records and post-service medical records
simply do not show the necessary chronicity or continuity of
symptoms to establish the required nexus to service. See
Savage v. Gober, 10 Vet. App. 488, 496 (1997) (noting that
"in a merits context the lack of evidence of treatment may
bear on a credibility of the evidence of continuity.") This
is particularly clear in light of the December 2000 VA
examiner's opinion, indicating that the veteran's gastric
leiomyoma was not related to herbicide exposure during
military service.
The Board has thoroughly reviewed the evidence of record, but
finds that the preponderance of the evidence is against the
veteran's claim for entitlement to service connection for
gastric leiomyoma with dumping syndrome. In summary, the
medical evidence does demonstrate that the veteran has been
diagnosed with gastric leiomyoma, which has not been
recognized by the VA as etiologically related to exposure to
herbicide agents used in Vietnam. Additionally, there is no
medical opinion suggesting that his gastric leiomyoma is
related to herbicide exposure in Vietnam or due to some other
incident of the veteran's active military service. There do
not appear to be any outstanding treatment records pertinent
to this appeal, and the veteran has been put on notice as to
the evidence needed to establish his claim. The veteran
offers only treatise or lay opinion as to nexus to service,
which is insufficient for establishing a service connection
claim, and, thus, the appeal must be denied.
ORDER
Service connection for gastric leiomyoma (with dumping
syndrome), to include as secondary to herbicide exposure, is
denied.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals